The Unfortunate Transparency of Law: Why They (Allegedly) Could Not Simply Amend FISA

Marty Lederman

So, why aren't the Senate Democrats making more of a fuss about the fact that the Attorney General and Michael Hayden determined to ignore FISA on the theory that the President has the constitutional power to violate such statutes? If Hayden's testimony is any indication, there appear to be two reasons:

First, it appears that Democrats such as Nancy Pelosi, Jane Harman, and Bob Graham were repeatedly briefed on the program. The Democrats have not yet come up with an adequate explanation of why their leaders did not object -- not even in private, to the Administration -- that the program violated FISA and was therefore unacceptable absent further statutory authorization. It could be that the program was described in such a way that it was not clear to the members of Congress that it did violate FISA. Or perhaps the Democratic leadership had no real opportunity to object. But if the Administration told the Democratic leadership that this program was not in compliance with FISA -- and that the authorization for the program derived from the authority of the Commander-in-Chief to ignore statutory constraints -- then it could be argued that the Democratic leadership would be complicit in the campaign to secretly circumvent FISA. If that's so, then it's predictable that the Democrats would now be reluctant to raise a fuss about the issue. They need a story that will explain the conduct of their own leaders -- and they might not yet have one (not a story that can be told in public, anyway).

Second, if Hayden is to be believed, the members of Congress who were briefed agreed with the Administration that: (i) The program was useful but in violation of FISA; (ii) The best way to deal with the program of FISA's obsolescence was to amend FISA to accommodate the program; but (iii) To amend FISA in such a way would risk public revelation of NSA methods that had to remain secret:

SEN. ROBERTS: [A]s you go down the list of people who were briefed -- and I'm just going to mention a few here: Ted Stevens, Dennis Hastert, Nancy Pelosi, Bob Graham, Dick Shelby, Jay Rockefeller, John Murtha, Harry Reid -- these are not shrinking violets. These are pretty independent people. And they say what is on their mind. So my question to you is: Basically, when you were doing the briefings, did anybody . . . express real opposition to this program?

HAYDEN: Sir, again, I don't want to get into private conversations, but the generalized questions asked and answered, concerns raised and addressed -- and I can tell you, in my heart of hearts, Senator, I never left those sessions thinking I had to change anything.

ROBERTS: Well, did anybody say, at any particular time that the program ought to be terminated?

HAYDEN: No, sir.

ROBERTS: That it was illegal?

HAYDEN: No, sir.

ROBERTS: There was, as I recall, a conversation unto the necessity of, perhaps, to fix FISA -- if that's not an oxymoron -- to improve FISA, to reform FISA. And that is an ongoing discussion in this committee and in the Judiciary Committee. And my memory is that it was members of Congress who gave you advice not to do that. Is that correct?

HAYDEN: Sir, that was in the large group in March of 2004. And there were discussions. FISA was considered to be one of the ways ahead. And my memory of the conversation is that there were concerns, I would say, almost universally raised, that it would be very difficult to do that and maintain the secrecy which was one of the advantages of the program.* * * *SEN. MIKULSKI: [I]n the five years that we've known each other and have talked about privacy versus security and the inhering tension, why didn't you come and ask for reform, either to any member of the committee or the committee and say, this, stabbing from what you've said -- and I don't want to put words in your mouth -- but FISA, in some ways, is dated. It's klutzy; it has choke points; technology has changed; the threat has changed.

Why didn't we get a request for reform?

HAYDEN: There were clear concerns [at DOJ], in which frankly, I shared, that attempts to change FISA would reveal important aspects of the program, eliminating key secrets that enabled us to do the kinds of things we were doing to an enemy whom I'm certain felt that this space was a safe haven for him. . . . And finally, in that March 2004 meeting that the chairman and Senator Hatch had mentioned where we had the senior leadership of the Congress there in addition to the leadership of the two intelligence committees, there was discussion about changes to FISA. And without getting into the details of the conversations, ma'am, there was a powerful and general consensus that an attempt to change the legislation would lead to revelations about the nature of the program, and thereby hurt its operational effectiveness.

Assuming that this account is accurate (and I have no way of knowing whether it is), it would raise two important questions.

First, Can it really be the case that any necessary amendment to FISA would reveal NSA secrets that would, in turn, cause Al Qaeda to act differently, thereby undermining NSA's efforts? That sure doesn't seem to be plausible.

For example: From all we can tell, the NSA program involves surveillance of persons ("targets," in FISA parlance) here in the United States, based upon a judgment of NSA experts that their calling patterns reveal that such targets might be conversing with Al Qaeda members (or with agents of undefined "affiliated organizations"). Under FISA, those patterns likely do not establish probable cause that the targeted U.S. persons are agents of a foreign power, nor that the targets' phones are used by agents of a foreign power. And without those two showings, the FISA Court could not approve the surveillance -- it would be unlawful.

If that's the case, why couldn't FISA be amended, for example, along the lines proposed by former DOJ FISA expert David Kris? Under one variant of Kris's proposal -- which is based on the very standards that NSA is said to have been using -- the FISA Court would be required to grant approval upon probable cause that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. Or, if for some reason probable cause is too high a standard, then the statute could merely require a reasonable basis to believe that the communications to be intercepted involve at least one party who is a member or agent of Al Qaeda or an affiliated terrorist organization. If that formulation doesn't quite cover what NSA wishes to do, surely there are other possibilities, as well.

Why would such a statutory amendment -- any more than the numerous other amedments to FISA over the years, including in the PATRIOT Act -- reveal state secrets in a way that would undermine NSA's SIGINT capabilities? The statute need not describe the methods by which NSA develops its evidence, nor the computer algorithms that provide the reason to believe that conversations with Al Qaeda are afoot. For many, many decades, agencies such as the CIA and NSA have engaged in extensive classified conduct, pursuant to general statutory authorizations, without any suggestion that the existence of the law itself reveals too much about sources and methods: It has not been necessary for such agencies to act outside the law.

In his testimony, Hayden suggested that the NSA is working in a "space" that Al Qaeda believes is "a safe haven" -- presumably beyond the reach of the law -- and that an amendment to FISA would tip off Al Qaeda that the haven is no longer so safe. But even assuming arguendo what we have no reason to assume -- namely, that Al Qaeda knows the ins and outs of FISA's complex statutory scheme -- why would terrorists have any reason to believe that they currently have a "safe haven" for their international phone calls? After all, the NSA can currently lawfully intercept those very same calls if the interception takes place overseas -- indeed, FISA does not even apply to such surveillance. Why, then, would an amendment such as Kris's proposal or something similar appreciably alter Al Qaeda's calling patterns?

Second, and more fundamentally, let's assume that Hayden, and the members of Congress who have been briefed, are correct that an amendment to FISA would itself reveal too much about the NSA's capabilities, to a point where terrorists would actually take steps to make their communications less susceptible to surveillance. OK, but what should happen then? Indeed, further assume what appears to be the case here: that the very reason a statutory amendment would be detrimental is that it benefits our intelligence operations to have the enemy believe that what our intelligence agencies are doing is unlawful. (This same scenario is playing itself out in the context of torture and other coercive interrogation techniques. The Administration goes around the world trumpeting that it does not torture, that it treats all detainees humanely, and that it does not engage in cruel, inhuman and degrading treatment. But if we actually abided by all of those norms, Al Qaeda would know that there are certain limits to our interrogation methods -- and such interrogations are far less effective if the detainee knows that the interrogator has legal limits. Therefore, we secretly adopt very counterintuitive notions of "torture" and "humane" treatment -- which permits us to use techniques such as waterboarding and hypothermia against surprised Al Qaeda suspects who (understandably) assume that such horrific techniques are legally proscribed. More importantly, we refuse to publicly discuss whether such techniques are off-limits. We may insist in our every utterance that we do not torture, but in the very next breath we also insist that to publicly explain what we mean by "torture" would be to give away critical state secrets.)

In other words, assume what might well be the case: that the Administration (and possibly some in Congress) did not wish to amend FISA to make the NSA program lawful because there is a genuine and distinct tactical advantage in having our enemies think that we are abiding by the rule of law declared in the U.S. Code, when in fact we are not doing so.

So here's the question: Is it acceptable in a liberal democracy for a nation's positive law to announce to the world that Conduct X is unlawful, but for the government to secretly engage in such conduct nonetheless? Assume you are a member of Congress who agrees that the NSA program is valuable, agrees that it is currently proscribed by FISA, and agrees that any amendment to FISA would give away the store. What should you do? (This is not a rhetorical question. Although I'm certainly inclined to say that this is one of the costs of the rule of law, I genuinely think it's a difficult question, and one that needs thoughtful responses because, justifiably or not, it appears to be arising more frequently these days.)

The question, as I interpret it, is more political than legal. That being said, I suppose there are three basic alternatives:

A) Turn a blind eye, trust the Decider, even at the expense of civil liberties.

B) Say no, sorry. The damage caused by the measures being proposed is disproportionate if compared with the potential harm in the absence of such measures.

C) None of the above. I'll let you give it a try, but after 3 months you have to prove to me that it works and that there's no legal and secure way of obtaining the same good results.

Putting myself in the shoes of those who were briefed, C sounds like the very minimum they should have demanded. If all those democrats failed to push for even this compromise solution, they failed their constituents.

Tactical advantages have their limits, strategic suicide being one of the more prominent.

We're in the realm of Occam's Razor here, and secrecy is way over-rated, especially when it comes at the expense of competence. The evidence says that the administration's primary reason for secrecy is to facililate manipulating the political situation at any given moment, and that when it is politically advantageous to do so, they will compromise secrecy without hesitation.

A democracy requires informed oversight and accountability, period. The laws are the means by which a democracy is governed, period: the only purpose of the executive brach is to EXECUTE the laws.

Permitting people like Curious George Bush and Dirty Dick Cheney to operate a closet dictatorship is like shooting yourself in the head to cure a headache. All their arguments tell me is something that's been obvious for a long time: that they think that the American people are fools.

These people are criminals and that's ALL that they are. The US government has degenerated into a crime syndicate: what secret will protect us from THEM? Anyone who can look at the last five years and think we are safe and secure is an idiot.

What we need is competence and honesty, not the secrecy and the scams of these crooks.

.. what appears to be the case here: that the very reason a statutory amendment would be detrimental is that it benefits our intelligence operations to have the enemy believe that what our intelligence agencies are doing is unlawful.

I seriously doubt that anybody who knows anything about the methods of intelligence and security agencies would think for a second that their methods can be really limited by statues. Tempered perhaps but never limited.

Besides people involved in terrorism of any kind, especially those who were able to organize and successfully execute anything as hideous as 9/11 attacks must know that they are in the game in which no methods are "unlawful". So to claim that we need to refrain from amending domestic laws to create the impression that our security agencies are free to do anything is highly dubious anyway you look at it.

Forgetting the terrorism for a while. Consider the reality of legal "limitation" on methods of security agencies. Here is where we are.

"Extremism in defense of [insert appropriate verbiage here] is no vice" has always been an overriding principle of all such agencies in all countries including this.

This is especially true when they respond to major perceived threats internal or external. Unsurprisingly security agencies always see major dangers facing their respective countries as this helps their budgets and stature and their ability to act outside the law.

For example of what is considered acceptable under such circumstances consider the FBI attempts to drive MLK to suicide simply because they considered him a major domestic threat. There is little doubt that their methods when dealing these days with "terrorist" or any other suspicious element (Hatfill, Mayfield and all of those other cases that have never seen the light of day) can be equally ruthless. After all we are in a post 9/11 environment where effectiveness not legality is of overriding importance.

Even assuming that Hooverian/Stasi like methods have been suppressed in the present day FBI (wouldn't bet on it!) we have new players out there. The DoD and various allied local agencies under the leadership of local Join Terrorism Task Forces. Most of them, especially DoD tend to be far less constrained by any legal principles than FBI ever was.

The indications are that it is still possible to neutralize people in this country using extra-legal, extra-judicial methods. On a whim of some local FBI, DoD or DHS security operative or their proxies. In the name of pre-emption or pro-activity. Laws, FISA amended or not have nothing to do with that. Neither do courts. Again the overriding principle in our security apparatus remains:

"Extremism in defense of [insert appropriate verbiage here] is no vice"

Certain on the "left" have been speaking for some time on the lapdog nature of the Democrats. The October Resolution in 2002 is a telling example, one which had many Democratic votes, and had people who truly don't like/trust the Bush Administration like Al Franken (Air America) in support.

At some point, this trust -- and we have delegated foreign policy and national security issues to the President too long, too broadly -- was shown to be foolhardy. As to Roberts, he also noted "everyone" thought Iraq had WMDs. I don't take what he says totally on face value.

But, yes, to some degree, the Dems gave too much discretion to the Bush Administration. Many still don't quite get it. This is helped by those who (like Pelosi?) might not be totally comfortable with national security matters, or deep down are not really all too liberal (like Reid).

I seem to remember Bob Graham saying something to the effect of "Hold your horses, I didn't get THAT briefing". And Rockefellar's safeguarded letter still annoys me as I have to wonder if he was uncomfortable regarding the handling of his nation's security and the enfringement on civil liberties why he stopped at just writing a letter and putting it in a safe. This was going on in the leadup to the 2002 midterms and Jay had to have recognized the power building of this presidency but to simply write a letter, I don't get it.

YOU BLODDY WELL AMEND THE LAW. Congress CAN be quiet. Who, aside from the national security community, really had any idea what all was buried within the (if I remember right) 900+ page Patriot Act.

I thought we were a nation of laws, but this is an administration of men. I would be MUCH more comfortable with all this if there were laws to cover and at least a prospect of some judicial and legislative oversight. Plus, that way, the program would produce evidence that could be used legally, rather than being the basis, the first fruit of the poisoned tree, for God knows what sort of extra-constitutional system.

Oversight briefings, while crippled, did occur. Of the few members who were briefed, none is saying they did not know the essential fact that FISA's core requirement was breached.

There is nothing in the Constitution or statute that authorizes eight legislators, meeting in secret with executive branch officials, to set aside or amend the operation of FISA.

Democratic leaders were generally complicit, which goes a long way to explaining their general lack of guts in challenging the illegality of warrantless surveillance now. (Except for Rockefeller's half-hearted letter, we have heard of no contemporaneous dissent.)

Rep. Harman's lame excuse is that she didn't realize it was illegal at the time because she wasn't allowed to consult with legal experts. Puh-leeze. From her official bio:

"Prior to her election to Congress, Harman worked as an attorney, served as special counsel to the Department of Defense and as deputy secretary to the Cabinet in the Carter White House. Harman began her career on Capitol Hill as chief counsel and staff director for the Senate Judiciary Subcommittee on Constitutional Rights."

I abhor the lawless behavior of the President, but there is plenty of blame to go around.

Actually I don't think it is acceptable for a government to act in contravention of its own laws but the more important issue from a security perspective is that the enemy, say some terrorist organisation, is not going to rely on that liberal democracy following its own laws. You cannot manage the perception of the terrorist either by explicitly following or just pretending to follow your own laws. It the latter case it is a secret that is extremely brittle and it will get exposed in the shape of leaks like the USA Today story and the terrorists' direct encounters with those employed in intelligence, military and law enforcement, directly engaged in defending the state. It is therefore of little or no value from a security perspective.

Again, the issue is the compatibility of secret laws (?) with the rule of law (cf. the discussion of Gilmore vs. Gonzalez). The testimony demonstrates some familiarity with reason-of-state arguments ( is Botero taught in military academies?)

Secrecy might also be an attempt to influence the justiciability of a controversy. From Baker v. Carr : "...prominent on the surface of any case held to involve a political question: (1) a TEXTUALLY demonstrable constitutional commitment to a coordinate political department;(2)a lack of JUDICIALLY DISCOVERABLE...standards...", etc.etc. Cf. the well-known aphorism of criminal litigators that their job is easier when there is actually good evidence against a defendant (because they have sth to respond to).

From the standpoint of legal theory, these tactics seem to suggest that the so-called expressive theories of law are, at best, incomplete.

Just some lateral thinking (perhaps too lateral): I have stumbled upon American Lawyer, Inc. & Michael Ravnitzky v. U.S. S.E.C.: (No. 01-1967, Sept. 6, 2002) (ruling that with a few exceptions regarding the agency's FOIA policy and legal interpretations, SEC properly withheld much of its FOIA training manual, exhibits and other attachments...). There, we read the following (emphasis added):

""In so arguing, the SEC impermissibly seeks to withhold 'secret' or 'private' agency law. FOIA requires disclosure of agency instructions or guidelines or substantive or procedural law affecting the public..."

Of course you amend it. Or you leave it as it is, and drop the programme. Look, we're fighting a bunch of terrorists, not the Axis war machine. I'm not going to deny that violent Islamism is a security threat, but for God's sake we're not about to be invaded. Gaining a small, hypothetical tactical advantage over terrorists is not worth throwing away the rule of law, which is precisely what Marty's hypothetical suggests we do. I could bang on about Franklin and stuff like that, but you all know it;s true anyway. The idea that we could as a matter of constitutional doctrine allow a government to blithely ignore duly enacted laws in the name of security is horrific. It could only lead in one direction, and I assume nobody wants to go there. To do so, when the threat is as far from existential as it's possible to be while remaining serious, is beyond all sense.